TCPA litigators will often trick and deceive callers in an effort to determine who is placing the calls and set up a TCPA lawsuit.
Well one medicare provider recently countersued a Plaintiff who allegedly set up a TCPA suit and the court is allowing a fraud claim to proceed against her.
In Keneisha Smith v. GetMeHealthCare, LLC 2026 WL 2089044 (M.D. Fl. July 21, 2026) the plaintiff alleged receipt of unwanted calls. In order to find out who sent her the messages she stayed on the line and was connected to GetMeHealthCare, LLC and then lied about her age to apply for coverage she did not qualify for.
Smith sued the Defendant for the unwanted calls. But the Defendant sued back arguing her participation on the call and the lie about the age constituted fraud.
Smith moved to dismiss the fraud claim arguing the claim was not viable under the circumstances of the case but the court disagreed:
GMHC alleges all of the relevant details regarding the alleged fraud, such as Smith’s conduct before the call (her consent to be contacted), when the call took place (June 12, 2025), how long the call was in total (7 minutes and 2 seconds), what misrepresentations Smith made during the call (that she consented to be contacted and her age), as well as how GMHC relied on the misrepresentations (by accepting the call from the thirdparty agent after Smith provided her consent to them and completing her enrollment). (Doc. 19 ¶¶ 8–15); (see also Doc. 29-2 at 2–4). GMHC alleges that Smith’s motivation to commit fraud was to predicate a lawsuit against GMHC to get money. (Doc. 19 ¶ 10). While Smith may disagree with that allegation, the Court must accept it as true at the pleading stage. See Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009) (citation omitted). The recording and transcript of the June 12, 2025 call support most, if not all, of GMHC’s allegations. (Doc. 29-2). GMHC provided “the who, what, when, where, and how of the fraud alleged.
Simple.
Now a key fact here is the allegation tha t Plaintiff consented to the call in the first place– which is the way these cases usually crop up since TCPA defendants rarely make outbound calls without consent.
So if you find yourself in a TCPA lawsuit arising out of a first-party (r even third-party) data lead definitely keep a counterclaim for fraud in mind–especially if the consumer stays on the line to talk to your agents afterward!
Troutman Amin, LLP has been filing counterclaims like these on behalf of TCPA defendants for years– so this is nothing new for us. But it is always great to see a court side with the defendant in one of these!
Give us a call if you have questions– or talk to the Baroness at ASE about it!
Chat soon.
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“Now a key fact here is the allegation tha t (sic) Plaintiff consented to the call in the first place– which is the way these cases usually crop up since TCPA defendants rarely make outbound calls without consent” lolololololololololololololololololol
” since TCPA defendants rarely make outbound calls without consent”
What fantasy world do you live in?
“since call centers never check DNC lists, never have consent, never properly identify themselves, never honor do not call requests and almost always spoof the caller ID.”
Fixed it for ya!
Never is quite the absolute, are you in every call center out there knowing what is done? The fact is most consumers not only consent 1x, but in looking at opt-ins, there is a 20% to 40% re-opt in rate.
If the consumer had never opted in, they would not have received a call.
A consumer that opts in and gets a barage of calls, has done a barage of opt ins.
But let me fix it for you:
“since I have never been in a call center, I don’t know if they check DNC lists, I don’t know if they have consent, I don’t know how they identify themselves, I’m not sure if they honor DNC requests and and thanks to laws like Stir Shaken it is harder than ever to spoof calls.”
Fixed it for ya!
I agree that “never” is too much of an absolute. I think that those of us who receive barrages of spam calls are rarely, or potentially never, receiving legitimate calls that are the result of a legitimate opt-in, which would cause someone like the OP to believe that they never occur. We also don’t usually consider calls from a legitimate opt-in to be spam.
I do want to comment on a few of your points:
“If the consumer had never opted in, they would not have received a call.
A consumer that opts in and gets a barage of calls, has done a barage of opt ins.”
This is factually incorrect. I will provide a specific incident that I ran into below. It is one that has happened to me dozens of times with other companies, and I know of many other people who have run into the same/very similar incidents.
I received a call from a spoofed number that appeared to be a local convenience store. The caller did not provide a company name initially, but after some pushing from me, told me his company was “Homeowner Relief,” which is a fake company name used to conceal their real company from their TCPA violations. The unknown company asks qualifying questions based around plumbing services, then transfers me to a local large plumbing company. I play along and get their details, then cancel my appointment that same day. Plumbing company continues to call/text despite me clearly opting out, letting them know about the tactics being used, and requesting the name of their lead generator. After heavy investigation on my end, I find their lead generator on my own. It ultimately turns out that their lead gen had outsourced the calling offshore to a company called Ray Advertising. Upon hearing that there are issues with the calls that have been made, Ray Advertising sends the lead gen an opt-in to help prove they were just following up on a lead…..
However, it turns out this opt-in occurred well *after* their call to me, on a site geared towards health insurance, and no one involved is listed as a company that can call based on that opt-in. I also was able to enlist the help of someone within their circle to provide me with proof via internal messages that they had reached out to their circle requesting that someone create a fraudulent opt-in for my calls to get them out of the trouble they had found themselves in. This fraudulent opt-in likely caused many additional calls.
I have had fraudulent opt-ins provided to me that contain fields unavailable on the site, missing fields required from the site, submitted to websites that were created only after I complained about the calls, etc.
So, to your point about “If the consumer had never opted in, they would not have received a call,” this is clearly not the case and is stated in as much of an absolute as “Never” was in the comment you replied to. Opt-ins do cause calls, but these bad actors, of which there are many, are the cause of the barrages of calls that I, and many others I know, receive.